Tassell v Hallen
| Jurisdiction | England & Wales |
| Date | 1892 |
| Court | Queen's Bench Division |
Practice - Writ of Summons - Service out of the Jurisdiction - Action for Breach of Covenant to Repair - Contract affecting Land …. sought to be enforced - Order XI., r. 1. (b), (g).
An action against the assignee of a lease for breach of a covenant to repair contained in the lease, is an action in which a contract or liability affecting land or hereditaments is sought to be enforced within the meaning of Order XI., r. 1 (b). Service of the writ of summons out of the jurisdiction may, therefore, be allowed in such an action where the land is situate within the jurisdiction.
Agnew v. Usher (14 Q. B. D. 78) distinguished.
Kaye v. Sutherland (20 Q. B. D. 147) followed.
The sub-sections of Order XI., r. 1, are to be read disjunctively, and each of such sub-sections is complete in itself and is independent of the others.
MOTION to set aside an order for leave to serve a writ of summons out of the jurisdiction.
The action was brought against three defendants, to recover — (1.) Possession of a piece of land and buildings situate in the County of Middlesex; (2.) Damages for breach of a covenant to repair the premises; and (3.) Rent and mesne profits. The plaintiffs alleged that they were entitled to the reversion in the premises under a lease granted by one Hayward to one Beaumont, whose right and interest under the lease became, in 1879, vested in two of the defendants, A. W. Hallen and G. M. Custance; that the said defendants in March, 1891 assigned the lease to the third defendant, J. Gibbons; that the defendants, Hallen and Custance, had during the time that they were in possession of the premises committed breaches of the covenant to repair contained in the lease; and that the defendant Gibbons had since the assignment to him committed similar breaches.
This was a motion by the defendant Hallen, by way of appeal from the decision of Wright, J., at chambers, refusing to set aside an order obtained by the plaintiffs, giving them leave to issue the writ of summons and to serve the same out of the jurisdiction upon the said defendant in Scotland, where he was ordinarily resident.
The order giving leave to issue and serve the writ was made upon October 22, 1891, and the writ was issued upon the following day, and was subsequently served upon the defendant Hallen, in Scotland.
W. E. Ball, for the defendant Hallen. If the order purports to have been made under Order XI., r. 1 (g), it is bad, because that rule requires that the action should be brought against some other person “duly served” — that is, who has at the time of the application for leave been duly served — within the jurisdiction. Here the order was obtained a day before the issue of the writ. The order could not have been properly made under rule 1 (b) because the defendants Hallen and Custance have assigned their interest to the defendant Gibbons, and, therefore, as against them the action is merely one for damages for breach of the covenant to repair. As against Hallen, therefore, the action is not one to enforce a contract, nor does the contract, in so far as the covenant to repair is concerned, affect the land or hereditaments within the meaning of rule 1 (b), because as against this defendant the claim is merely one...
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...7 The Rules under Order 11 are to be read disjunctively and each sub-section is complete in itself and independent of the others. ( Tassell v. Hallen, 1892, 1 Q.B.D. 321). 8 The question that has arisen in this case is whether the Plaintiff can properly present his case as a case for damage......
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